Is my compulsory redundancy actually unfair dismissal

[StuntNun]

I am in the process of being made redundant at work and would like a bit of feedback from others who may have more knowledge/experience of this than me. I have looked at all the relevant websites and I don't think my company is acting legally.

My department has been reorganised and the work of six of us in my current position has been redistributed to four positions within the department and two positions within another department. I have applied for and been interviewed for all the new positions but was told that I 'did not meet the pass mark for the interviews' HOWEVER there are currently two positions left unfilled.

I have an alternatives to redundancy meeting with my manager and HR today at 2 p.m. and I intend to state that they cannot make me redundant because the work I was doing is still required by the company and there are two suitable alternative positions that I am qualified to do but remain unfilled. The reason I was given for not being appointed to one of the new positions was that I did not pass the interview, they have not taken into account my past performance (four appraisals at Meets Expections or above), experience, attendance or any other factors into account.

Do I have a leg to stand on here or am I going to end up redundant? I will phone Labour Relations (the NI equivalent of ACAS) but I wanted to see what my company would offer me first. Actually until the final interview yesterday I was pretty sure that I would end up with a job as I had not trouble ticking all the boxes on the requirements for both positions.

The background is that I am 26 weeks pregnant and was expecting to start maternity leave in October with an enhanced maternity package of 90% of salary for six months. In the past year I have made a complaint about my appraisal not being carried out correctly since no examples were given for the area of improvement. I have also had a grievance (that was found against me) for the company taking five months to carry out a review of my grade of employment where other individuals in my department were reviewed with one week. I believe these events have combined to make the company want me out.

Hmmmm tricky. Are other colleagues also in the redundancy pool getting the jobs? Are the new jobs a higher grade?

I'm in NI as well and didn't really find labour relations much help, or the equality commission.

What's the redundancy package like? Would it be worth taking?

The jobs are all the same grade as the six of us are currently on. Four have been kept on in the 'new' positions and two of us are to be made redundant. The other person that's being made redundant may not have tried so hard to be kept on because he had already handed in his notice earlier in the year and been asked to stay on so as far as he's concerned he's actually now better off than he would have been.

Of the four people that have been kept on, three have less experience than me (I have 4 years with the company, the others have 1, 2, 2 and 7) and three are less well qualified than me (i.e. a degree at a lower grade or in a subject irrelevent to the pharmaceutical industry). I just have this bad taste in my mouth that it's all been fixed to get me out.

The redundancy package is substantially less than I would have got for working for the next eleven weeks and taking maternity leave. I'll be a couple of thousand pounds worse off plus it's possible they will take my SMP out of my redundancy pay, apparently that's allowed.

Experience and degree less important than performance in the job - do you know what gradings the others got in their appraisals?

Are the six 'new' jobs exactly the same as the six old jobs, or do they include different tasks as well?

Is the reorganisation part of a larger reorganisation in the company, or just affecting the six of you?

They can't take SMP out of your redundancy pay.

Have they followed their own redundancy process? If their process states it is entirely based on interview, then experience/qualification is irrelevant. Are the jobs exactly the same?

Squiffy the new jobs are not exactly the same, the old job requirements have been split between two new roles. The only addition to the one I was hoping to get was the addition of delivering GMP training but since I am a 'trained trainer' I didn't see that as being a particular stretch for me. As far as I'm aware, all six of us got Meets Expectations for our appraisals this year and all but one of us were the same grade (one girl was a higher grade but had been with the company the longest at 7 years). The reorganisation is just the department so 13 roles (three team leaders, six officers and four technicians were involved) HOWEVER there were 14 roles available (four team leaders, six officers and four technicians). One person took voluntary redundancy and two of us are now faced with compulsory redundancy having been told we did not meet the pass mark for the interview.

Maynie I hope you're right about the SMP, I read a leaflet that said they can do that but it doesn't seem right to me. The information they gave to me said that compulsory redundancies would be carried out based on a 'skills matrix' whatever that's supposed to be.

I just can't grasp how they are claiming to be making me redundant when there are two job vacancies doing the same work as I was doing before. That's not redundancy, that's dismissal and the process is completely different. I have had no verbal warnings or disciplinaries, I haven't even been called in for an informal chat about any problems. On the one hand I have a letter from May stating that they are considering moving me up a grade in June, and on the other hand I'm being told that I'm not good enough to do the job.

I phoned up the Labour Relations Agency and was advised to go ahead and leet them make me redundant (not that I have much choice having applied for five jobs and been offered none of them) then to take the company to court.

I had a meeting with my manager today to offer alternatives to redundancy and I suggested that they give me one of the positions that I interviewed for, basing it on my performance, appraisals, attendance and experience instead of on the interview. I doubt it will make any difference but at least they have to pretend to consider it.

Make sure you get everything in writing. If you have any calls to make, follow it up with an email saying "to confirm the details of our conversation, blah blah blah". This was it is all documented should you go to court.

Good luck.

From memory I think you can ask to see how they have come to tge decision. Obviously not tge others scores but how yours relate I think.

It's a horrible time, dh and I both opted for VR in tge last 4 years. Have you looked at tge directgov website? It helped my lack of knowledge enough to feel confident with the process.

I agree that stuff in writing is important. And I think it is smelling a bit dodgy. I have twice seen bosses reorganise whole departments simply to 'ged rid' of people they no longer want there.

I would send an email to boss and to HR, stating something like

I am concerned that I am not being treated fairly and in accordance with my legal rights, and I would like confirmation of the reason for potential redundancy, given that the only acceptable valid reasons to my knowledge are the closure of a business or workplace, or a diminishing need for employees to do the available work. I am not sure that either of these criteria have yet been established?

I am also concerned that - given that places remain unfilled and I clearly have the skills required to fill one of those places - the general criteria for redundancy selection (that there are no remaining roles available that can be performed by the employee) does not appear to have been fulfilled.

I would furthermore like confirmation in writing as to the reasons for my being refused one of these roles. Having performed consistently at, or above, the standards set by the firm over a number of years, and having been able to establish my credential for the elements of the role that are slightly changing, I do not understand your reasons for refusing me a role. To clarify further, I understand that acceptable reasons for refusing me a role are:- capability, level of skills and competence, experience, and - in some instances - sickness/disciplinary records. Please can you clarify in writing on which of these criteria I was refused one of the roles, and what evidence you have to support such an assessment.

Thanks Squiffy that looks really good. I have to go in tomorrow to see what they made of my alternative to redundancy suggestion but if they still won't give me a position then the compulsory redundancy will go ahead in the afternoon with the aid of the Labour Relations Agency.

I have contacted a solicitor to receive legal advice as to whether I will have a case for unfair dismissal but have not been able to speak to him yet as everything is happening so quickly. My concern at the moment is that tomorrow afternoon I will be asked to sign a document stating that I accept the terms of the compulsory redundancy and I agree not to sue the company. If I refuse to sign this then I would waive my right to the enhanced redundancy pay which is just over £5000. So I would be gambling that £5000 on the possibility of getting a settlement out of court or a compensation amount awarded by the court.

I forgot to mention that my department currently employs two temps, neither of whom have been given any notice that their contracts may be terminated.

I think I would not go in to that meeting tomorrow, until I had had time with the solicitor.

At the very least I would refuse to sign the document until the solicitor had checked it.
If the work was similar, the fact that the temps have not been released is significant.

In mainland uk, compromise agreements are not considered properly valid unless you received independant legal advice (paid by firm) prior to signing it. Not sure if that's the case in ni. You should check first.

Hi stunt, just wondering how the meeting went?

I had my 'termination' meeting yesterday where my manager said she had considered my alternative to redundancy but felt that on the basis of the interview I did not have the skills required for the new quality organisation. HR said they would have a letter out to me today confirming that and my right to appeal but I haven't received that yet.

I'm now certain that it is a personal thing, she has taken advantage of the restructuring to get rid of me because I had a grievance against her earlier in the year. If she wanted to keep me on then she could legitimately have done that yesterday. Also I have worked with this woman for over four years and she didn't express any regret about the whole thing. I can't believe another mother could do that to someone in my position without at least looking upset about it unless they were doing it in purpose.

Next step is the appeal but I think this company is so sure they can do whatever they want and get away with it that there's not much hope there.

It's all very depressing at a time when I thought I would be getting things ready for the baby. I'm going to see the GP as I think I will be at risk for post-natal depression after all this.

Please send in that email. Don't wait until an appeal - get it in first, and add a line that you would like the answers in writing before the appeal is heard.

Before you leave org you need copies of all the policies about maternity policy, redundancy etc...

Also you need to have all the documentation around the grievance.

I was compromised out of my job earlier this year, face didn't fit, in UK as someone has said there is a legal requirement for you to see a solicitor some of it paid by the company my company paid £300 - I had a further solicitors bill of £990 - but she argued and got me an extra £8K so well worth it!

Part of the discussions with my solicitor included them having to explain they are taking away your right to sue etc..., I spoke to my solicitor about not taking the package and going through tribunal (want to avoid but if I had a better case then I was kinda willing!) - she advised me that often courts will look at people that have walked away from a compromise and not tried to resolve and may not award in your favour. Basically the courts want companies and employees to come to agreements.

My package increase was based on they were trying to get rid of me but not others in my team a huge headcount program was going on but I didn't met the critriea to be going... and I had been Tupe'd in just under a year over, whilst on Maternity leave so it was very very dodgy!

That said I've not yet been able to get a job, part of your arguement would be you would be unable to start another role at your stage of pregnancy and get maternity benefits and the unfair selection side of things.

You have the right to see the selection criteria, how it was applied, in interview they can show you the scores of all of you and not the names etc...

A manager many years ago of mine wanted rid of one of my team and I had to do the dirty work, even though I didn't agree with it, (Luckly HR agreed with me!), but if I had to have gone through with it I would have had to show no emotion or show that I was not happy about the situation, so maybe the manager is in a difficult position (just saying incase it is relevant you don't know for sure - treat everyone you deal with throughout with professionalism so you don't get any grief/issues after).

I've been a witness in a tribunal and they are horrid, so if it comes down to the fact you appeal the decision, you need to make sure they have followed the process 100% - if they have messed their own process up one bit your first appeal is based on that and you ask for the process to be re-done correctly.

This is a time delaying tactic....

If they have done it correctly then you appeal on the grounds of appeal but before that ask for the selection markings/interview notes and where you failed to pass. Ask for the feedback on the interview and what you should have done to pass...

Good luck it is a shitty position to be in and it hurts when it feels personal.

Good luck with the baby as well xxx

Thanks so much Squiffy and PeppaPig for your excellent advice. It's a lot to take in but I'm certain that they haven't followed procedures correctly. I'll keep plugging away at this.

Seriously delay as long as poss they have to keep paying you during this time of they go
Down the compromise agreement mine took about a month to sort and made changes to it as well do I was happy with the wording!

A decent solicitor will argue that because of being pregnant that it is unfair (regardless of whether it is or isn't!) and that if you were to go because of pregnancy maternity benefits etc makes you want more compensation...... Good luck x

Sorry I've only just seen this. Are you a member of a union? If not can you join one? They will have a lot to say about this, the selection criteria for the new jobs does not appear to be very sound. As you are pregnant you should get some legal advice immediately - if not from a union then your first port of call should be the CAB.
Seriously. You may be in a position to take them to a tribunal - just don't sign a compromise agreement. By doing that you sign all your rights away.

Thanks Stow I'm not going to sign the compromise agreement because I think I've being forced out because I'm pregnant or as revenge for raising a grievance or both. Other people with less experience relevant to the new positions or with poorer qualifications were kept on. I am also the only one in the department with statistics and programming skills which are useful for the job and also not very common in the rest of the company. The whole selection process was based on one interview which I will be inclined to argue is subjective rather than objective. I have contacted a solicitor who has agreed to represent me. You have to be a member of a union for a certain time before they will represent you. I have also contacted the Equality Commission of Northern Ireland and they have opened a file for potential sex discrimination.

Just a quick update on this, my company has agreed to add the enhanced maternity pay to my redundancy package as a goodwill gesture. I would be inclined to accept rather than have to go through with the tribunal BUT they want me to pay income tax and NI on it (this would amount to several thousand) as maternity pay is a salary-benefit. I have asked them to add the amount that I would have received for enhanced maternity pay on to the ex gratia redundancy payment so that I don't have to pay tax on it. I would still be well within the threshold of £30,000 before you pay tax on your redundancy settlement. HR are insisting that it's not possible to do that but I'm arguing that as it is an extra payment as a goodwill gesture, rather than a contractual obligation, they would be able to include it in the redundancy portion of the settlement. Note that while this means I get an extra few thousand pounds, it doesn't actually cost the company any more, in fact they would save slightly on their NI contributions.

If anyone has any info they could contribute on this it would really help as I feel negotiations are at an impasse but that they have made an error in the tax situation here.